Citation Nr: 0020085
Decision Date: 07/31/00 Archive Date: 08/02/00
DOCKET NO. 96-08 828 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an evaluation in excess of 40 percent for
posterior tibial nerve palsy with right ankle fusion.
[The issue of entitlement to an effective date earlier than
February 21, 1996, for an award of service connection for
post-traumatic stress disorder is the subject of a separate
decision]
REPRESENTATION
Appellant represented by: James W. Stanley, Jr.,
Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Sampson, Associate Counsel
INTRODUCTION
The veteran's active military service extended from August
1967 to June 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas. That decision granted service
connection for posterior nerve palsy with right ankle fusion,
secondary to service connected shell fragment wound to the
right posterior calf. A 40 percent evaluation was assigned
effective October 15, 1997. During the pendency of this
appeal, the appellant's claim was transferred to the RO in
San Diego, California, pursuant to the appellant's change of
address.
In February 2000, a Travel Board hearing was held before the
undersigned member of the Board of Veterans' Appeals, who is
the member making this decision and who was designated by the
Chairman to conduct that hearing, pursuant to 38 U.S.C.A.
§ 7107(c) (West 1991 & Supp. 1999).
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran's posterior tibial nerve palsy with right
ankle fusion is manifested by dorsiflexion and plantar
flexion of approximately 25-30 degrees, very limited eversion
and inversion, use of a brace, and complaints of numbness,
pain and discomfort.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 40 percent for
posterior tibial nerve palsy with right ankle fusion have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
Part 4, including §§ 4.7, 4.71a and Diagnostic Code 5270
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The service medical records show that the veteran received a
through and through shell fragment wound to the right leg in
Vietnam. On his discharge from service in June 1970, he was
service-connected for the residuals of this injury which
included loss of a small amount of tissue in the right leg
and a scar on the right calf. VA examination revealed his
ankle to be normal without loss of motion.
In February 1995, the veteran was admitted to the VA hospital
with a 25 year history of right foot and calf pain. He had a
calcanealectomy and posterior tibial tendon advancement. In
July, he was hospitalized again. He gave a history of
progressively painful pes planus deformity with forefoot
abduction. The previous surgery had produced no significant
improvement in his pain, and he continued to be painful with
bracing. The report indicated that he had partial nerve
palsy of his posterior tibial nerve which had led to
paralytic deformity, and limited sensation on the plantar
aspect of his foot. A right foot triple arthrodesis with
local bone grafting was performed. A December outpatient
treatment record indicated that the veteran ambulated with a
boot walker.
In a May 1996 personal hearing, the veteran described
impairment in his gait caused by muscle damage and stated
that he had muscle wasting in his right calf. He testified
that he had pain in his right foot which went up through his
wound. He stated that his right foot was fused, and he had
almost no ankle motion.
In October 1997, the veteran filed a claim for an increased
rating for his service connected residuals of his gunshot
wound, specifically referring to the ankle. Because the
veteran was not service connected for his right ankle, the RO
accepted this statement as a claim for service connection for
the right ankle secondary to his service connected residuals
of shell fragment wounds to the right leg.
In a January 1998 VA examination, the veteran stated that his
past fusion of the right ankle had improved his symptoms
somewhat. He stated that he wore a brace that extended from
just below the knee down to his shoe which limited the
flexion and extension of his ankle. He added that he still
had pain about the right ankle fairly frequently. On
physical examination, the examiner noted an obvious decrease
in circumference of the right calf area as compared to the
left. On the right ankle, the examiner noted two surgical
scars, one on either side of the ankle just anterior to the
ankle which were noted to be a result of the fusion. The
right ankle had dorsiflexion and plantar flexion of
approximately 25-30 degrees either way. Eversion and
inversion were very limited due to the fusion. X-ray
examination in August showed the post surgical changes of the
foot on the right side with fusion and internal fixation
devices. The impression was post injury and postoperative
status of the right leg with a fusion of the right ankle.
The examiner opined that the loss of use of the right foot
was due to his service-connected disability.
In a May 1998 personal hearing, the veteran testified that he
had no movement at all in his right ankle, was in chronic
pain, and wore a brace. He stated that when driving, he
would use his knee and drag his heel forward and back to work
the accelerator pedal.
The RO granted service connection in an August 1998 rating
decision for posterior tibial nerve palsy with right ankle
fusion as secondary to service-connected shell fragment wound
of the right posterior calf. A 40 percent evaluation was
assigned under Diagnostic Code 5270 for ankylosis of the
ankle. The RO also granted special monthly compensation on
account of loss of use of one foot. The veteran disagreed
with the 40 percent level of disability assigned.
In the veteran's October 1998 substantive appeal, the veteran
argued that he was entitled to an evaluation for the
orthopedic component of his disability, separate from the
neurological component of his disability. He also argued for
a separate evaluation for any additional disability resulting
from limitation of motion due to arthritis/ankylosis relying
by analogy on an opinion by VA's General Counsel permitting
such consideration for disorders of the knee.
In a February 2000 personal hearing, the veteran described
his current condition. He stated that he had no sensation
from about mid calf down. He indicated that he had been in a
rigid brace, which did not permit his right ankle to move.
He stated that he had a lot of pain coming up out of the
ankle which he felt was surely nerve damage. He had loss of
control of the foot, and used a cane as well as a "lot of
time in concentration, keeping the right foot going in the
right direction." He added that he was going to a chronic
pain clinic the following month.
Applicable Laws and Regulations
The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). The initial assignment of
a disability rating following the award of service connection
is part of the original claim, and the United States Court of
Appeals for Veterans Claims (Court) has held that when a
claimant is awarded service connection for a disability and
subsequently appeals the initial assignment of a rating for
that disability, the claim continues to be well grounded as
long as the rating schedule provides for a higher rating and
the claim remains open. Shipwash v. Brown, 8 Vet. App. 218
(1995). All relevant facts have been properly developed and
no further assistance to the veteran is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
Service-connected disabilities are rated in accordance with
VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999)
(Schedule), which are based on average impairment of earning
capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1999). The disability ratings evaluate the ability of the
body to function as a whole under the ordinary conditions of
daily life including employment. As such, the ratings take
into account such factors as pain, discomfort, and weakness in
the individual rating. 38 C.F.R. §§ 4.10, 4.59 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for the higher rating. 38 C.F.R. § 4.7 (1999). When a
disability is encountered that is not listed in the rating
schedule it is permissible to rate under a closely related
disease or injury in which the functions affected, the
anatomical location and the symptomatology are closely
analogous. 38 C.F.R. § 4.20 (1999).
Generally, all disabilities, including those arising from a
single disease entity, are rated separately with the
resulting ratings being combined. 38 C.F.R. § 4.25 (1999).
Pyramiding, that is the evaluation of the same disability, or
the same manifestation of a disability, under different
diagnostic codes, is to be avoided when rating a veteran's
service-connected disabilities. 38 C.F.R. § 4.14 (1999).
However, it is possible for a veteran to have separate and
distinct manifestations from the same injury which would
permit rating under several diagnostic codes. The critical
element in permitting the assignment of several ratings under
various diagnostic codes is that none of the symptomatology
for any one of the conditions is duplicative or overlapping
with the symptomatology of the other condition. Esteban v.
Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a
service-connected facial injury sought an increased rating,
the veteran's disability was to be properly assigned
compensable ratings under separate codes for disfigurement,
tender and painful scars and muscle injury).
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2 (1999). Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (1999);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). The United
States Court of Appeals for Veterans Claims has held that, at
the time of an initial rating, separate, or staged, ratings
can be assigned for separate periods of time based on the
facts found. See Fenderson v. West, 12 Vet. App. 119 (1999).
Analysis
The veteran's right ankle disability is rated by analogy to
Diagnostic Code 5270, for ankylosis of the ankle. A 40
percent rating is for fixation of the ankle in plantar
flexion at more than 40 degrees, or in dorsiflexion at more
than 10 degrees or with abduction, adduction, inversion or
eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270
(1999). On the most recent VA examination, the examiner
noted that he had dorsiflexion and plantar flexion of
approximately 25-30 degrees and very limited eversion and
inversion. The Board finds that he is appropriately rated at
the 40 percent level of disability for ankylosis of the
ankle. This is the highest evaluation under the Schedule for
disabilities involving the ankle.
The Board has carefully considered the veteran's contention
that a higher evaluation is possible through the use of
separate ratings. Specifically, the veteran argues that a
separate rating is possible for the neurological component of
his right ankle disability. Under Diagnostic Code 8525,
ratings are possible for varying degrees of paralysis of the
posterior tibial nerve involving paralysis of all muscles of
the sole of the foot, frequently with painful paralysis of a
causalgic nature; toes cannot be flexed; adduction is
weakened; plantar flexion is impaired. 38 C.F.R. § 4.124a,
Diagnostic Code 8525 (1999). As noted above, a separate
rating is possible for separate manifestations of the same
disability where none of the symptomatology for one condition
is duplicative or overlapping with the symptomatology of the
other condition. In this case, a separate rating is not
possible because both the orthopedic and neurological
components of the veteran's disability contemplate limitation
of motion in the form of limitation of adduction and plantar
flexion. A separation rating for each component would
therefore violate the rule against pyramiding. See 38 C.F.R.
§ 4.14 (1999).
The Board has also considered the argument regarding the
application of VAOPGCPREC 23-97. In that opinion, the
General Counsel held that where the medical evidence shows
that a veteran has arthritis and instability of the knee and
where the diagnostic code applicable to his/her disability is
not based upon limitation of motion, a separate rating for
limitation of motion under Diagnostic Code 5003 may be
assigned, but only if there is additional disability due to
limitation of motion. See VAOPGCPREC 23-97. However, this
opinion specifically addressed only the evaluation of the
knee. There is no indication that it was intended to be
applied to other joints. As such, the Board finds that
VAOPGCPREC 23-97 is not for application in this case.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States
Court of Veterans Appeals (Court) held that 38 C.F.R. §§
4.40, 4.45 were not subsumed into the diagnostic codes under
which a veteran's disabilities are rated, and that the Board
has to consider the "functional loss" of a musculoskeletal
disability under 38 C.F.R. § 4.40, separate from any
consideration of the veteran's disability under the
diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995).
The Board has noted the veteran's complaints of pain;
however, the veteran is already rated at the schedular
maximum for his limitation of motion of the ankle, therefore
sections 4.40 and 4.45, with respect to additional functional
loss due to pain on motion, are not applicable. Johnston v.
Brown, 10 Vet. App. 80, 85 (1997). In this regard, the Board
notes that the veteran is also in receipt of special monthly
compensation for the loss of use of one foot.
The preponderance of the evidence of record, at any time
since the veteran's separation from service, is against an
evaluation in excess of 40 percent for posterior tibial nerve
palsy with right ankle fusion. See Fenderson v. West, 12
Vet. App. 119 (1999) (at the time of an initial rating,
separate, or staged, ratings can be assigned for separate
periods of time based on the facts found). Because the
evidence for and against a higher evaluation is not evenly
balanced, the rule affording the veteran the benefit of the
doubt does not apply. 38 U.S.C.A. § 5107(b) (West 1991);
38 C.F.R. § 3.102 (1999). Gilbert v. Derwinski, 1 Vet. App.
49, 55 (1990).
ORDER
An increased initial rating for posterior tibial nerve palsy
with right ankle fusion is denied.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals